We Wish We Weren’t in Kansas Anymore: An Elegy for Academic Freedom

ONE OF THE GREAT CLAIMS of American higher education is that it protects and encourages something called “academic freedom,” a guarantee of protection for teachers and students to engage in free inquiry and exchange no matter how inconvenient or unpopular the ideas they express in their scholarship, teaching, or studies. In contrast to more repressive countries, so the story goes, US academic freedom is well established and secure. Indeed, this claim carries so much weight that some college and university administrators use it to defend opening branch campuses in repressive countries, asserting that these campuses will not only protect academic freedom, they will provide a model for their host countries. There is a problem though. These claims ignore a crucial set of facts: because of the increased privatization of public universities, the increasing managerial domination of public and private colleges and universities, and the narrowing of public employee speech rights, the legal and practical underpinnings of academic freedom are weaker than they have been in decades. Academic freedom is being hollowed out by the economic and social transformation of higher education. It needs to be rebuilt along with the colleges and universities that should provide it a home.

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In December of 2013 the Kansas Board of Regents took a series of steps that may dramatically reduce academic freedom in the state’s higher education institutions. Apparently responding to political criticism over one University of Kansas professor’s anti-NRA tweet, the regents instituted a sweeping new policy regulating the proper and improper uses of social media. The policy regulates a wide range of expression and increases the power of university executives over the speech of faculty and staff. The Board defined social media broadly as “any facility for online publication and commentary, including but not limited to blogs, wikis, and social networking sites.” It declared that “the chief executive officer of a state university has the authority to suspend, dismiss or terminate from employment any faculty or staff member who makes improper use of social media.” In focusing on social media, the Kansas regents sidestepped faculty academic freedom within the classroom (although it is unclear about faculty emails with students), and by granting CEOs the power to control external expression and the right of internal electronic dissent, the Board threatens to return Kansas’s higher education system to an earlier day, 90 years ago, when administrators believed that they had the right to dismiss faculty for their opinions or expressions. That these regulations govern the terrain of electronic communication threatens to embroil both faculty and the universities and colleges in an ever-expanding structure of surveillance and censorship.

The Board of Regents has wide-ranging authority over Kansas’s public universities, community colleges, and technical schools, so these rules affect a large number of faculty and staff. The rules grant the executives of Kansas’s public institutions of higher education wide-ranging powers to punish people for a wide variety of expressive behavior. Punishment is clearly the key: the rules are not part of a section of the Board Policy Manual on “rights and responsibilities”; they are in a section concerning dismissal and suspension. Nor do they include the traditional safeguards of faculty or staff participation: they empower the “Chief Executive Officer” to make a decision and the individual punished is only able to grieve the decision later.

Not surprisingly, the Board’s decision provoked a firestorm of criticism across the internet and in newspapers, protests from the American Association of University Professors, and dismay among faculty and staff. Faced with this criticism, the Board announced that they would create a review committee to review the new policy and propose needed amendments. But as of the middle of February the policy still stands, and what, if any, modifications will occur is unclear. A report is expected in March.

In important ways the Kansas Board of Regents is an outlier on this issue. In the past few years, the University of California, the University of Minnesota, and the University of Michigan have all issued reaffirmations of academic freedom and their employees’ rights. But this flurry of activity should give us pause. Kansas’s new social media rules sit at the intersection of a series of ambiguities and tensions that have bedeviled academic freedom for decades: is it an institutional or an individual right? How far does it extend? What sorts of academic speech can claim First Amendment protections? And, in the case of public universities, what is the role of the state? This last concern has taken center stage as a result of recent court decisions that have severely reduced the free speech rights of public employees (private employees already have more limited rights as employees). The Kansas case is crucial because it shows one possible future for academic freedom in the United States.

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What, then, are the Kansas social media rules? They entail four categories of restrictions:

The first threatens punishment for any statement that “directly incites violence or other immediate breach of the peace.” Superficially clear, a moment’s thought demonstrates how expansive a restraint this could be. If a member of the faculty were to tweet an announcement of a protest on campus that aimed to disrupt normal campus life or that ended up disrupting normal campus life, would that be grounds for dismissal? What of an article in support of a sit-in at an administrative office? What does “directly” actually mean: a philosophical treatise on the right of violence against the state? Of course, there are broader legal restrictions on speech that restrict the incitement of violence. But those entail a judicial process in a public forum. This proposal grants executive discretion instead.

The second moves directly into administrative authority to determine when speech is in the “best interests” of the university. It declares a use of social media “improper” if it is “made pursuant to (i.e. in furtherance of) the employee’s official duties, is contrary to the best interest of the university.” This clause is striking in its vagueness. If a campus CEO may decide that an electronic communication “made pursuant” to “official duties” is “contrary to the best interest of the university,” then in principle authority is granted to a university president to punish a faculty member for a piece of electronically transmitted scholarship that, say, offends powerful donors, state officials, or public opinion; although the language of social media policy placed stress on blogs and social media sites, it made it clear that it covered “any facility for online publication and commentary.” Admittedly, it is unlikely that any public university administration would seek to punish a faculty member for scholarship published electronically in the present moment. But increasingly the categories of scholarship are blurred as scholarly journals take to Twitter and Facebook as well as blogs to communicate with their readers in less formal settings. Such interventions have occurred in the past; indeed they were a crucial reason behind the development of the traditions of academic freedom. The AAUP itself was founded in order to challenge the willingness of college trustees and presidents to punish or fire faculty who violated the trustees’ or presidents’ sense of acceptable teaching, scholarship, or behavior. And in Kansas, as William Black has shown, legislators have proven willing to intervene in response to matters of scholarship and teaching.

The third restriction is more conventional. The regents announced that employees may not make a statement through social media that “discloses without authority any confidential student information, protected health care information, personnel records, personal financial information, or confidential research data.” On its face, this restriction simply extends traditional protections of privacy into a new digital format. But it does point to a larger question: the precariousness in general of electronic communications. After all, one ongoing threat to academic freedom has been the use of various forms of Freedom of Information requests to intimidate or incriminate academics who take unpopular positions. Although William Cronon at Wisconsin or the targets of Ken Cuccinelli in Virginia may be the best known, this sort of pressure is surely more widespread. And although there is no reason to think that the Kansas Board of Regents would punish a faculty member because some outside group was able to demand previously private records, it is striking that the Board expresses no commitment here to defend a professor’s rights to use email or other forms of electronic communication.

The final restriction takes us to the heart of university governance and academic freedom. The use of social media is “improper” if it:

impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, impedes the performance of the speaker’s official duties, interferes with the regular operation of the university, or otherwise adversely affects the university’s ability to efficiently provide services.

Here the board brings out the conventional justifications university administrations have used to try to shut down public criticism from, or organization by, employees: worries about “close working relationships,” “harmony,” et cetera. Criticizing administrative decisions or policies, advocating protests, challenging spending or budget decisions, all could, in theory at least, “impair discipline by superiors” or “interfere with the regular operation of the university.” In effect, the Board of Regents is granting to a campus CEO the authority to suspend, dismiss, or terminate any employee for criticism that he or she feels disrupts whatever he or she might define as “harmony.”

To be sure, the Board does recognize countervailing rights of public speech. Therefore it declares that a CEO would need to perform a “balancing act” before disciplining an individual under this rubric.

In determining whether the employee’s communication constitutes an improper use of social media under paragraph (iv), the chief executive officer shall balance the interest of the university in promoting the efficiency of the public services it performs through its employees against the employee’s right as a citizen to speak on matters of public concern, and may consider the employee’s position within the university and whether the employee used or publicized the university name, brands, website, official title or school/department/college or otherwise created the appearance of the communication being endorsed, approved or connected to the university in a manner that discredits the university. The chief executive officer may also consider whether the communication was made during the employee’s working hours or the communication was transmitted utilizing university systems or equipment.

Here the Board moves out of the realm of simple administrative power and into the law. In theory, the First Amendment might protect employees because of their “right as a citizen to speak on matters of public concern.” Unfortunately, the structure of these new social media rules has been made possible by a series of court decisions calling into question the First Amendment rights of public employees. Indeed, these court decisions were embedded within the justification for the rules themselves (see the discussion agenda prepared by the regents’s general counsel, outlining the relevant Supreme Court decisions) and the language of the regents’s “balancing act.”

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The judicial support for academic freedom today is, at best, uncertain. In part, that is due to the multiple ways that the question can be posed and to whom it applies: universities and colleges, faculty, and/or students. (I am leaving aside here the questions concerning teachers and students in K-12 situations.) Academic freedom has been addressed by the courts under the rubric of First Amendment jurisprudence and in relation to due process considerations. But it also falls within the realm of labor law. It matters greatly if you work in a private or a public university or college, and it can matter whether you work in a religious or secular university or college. In terms of First Amendment claims for academic freedom, the situation is particularly complex for faculty in public institutions, because there the State assumes a dual role — as sovereign and as employer.

In so far as it is a matter of the State acting as a sovereign (e.g., as a ruler seeking to curtail the speech of citizens), the courts have not directly challenged the Warren court’s ringing affirmation of academic freedom in Sweezy v. State of New Hampshire (1957):

The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.

The Court presumes that scholarship — in both its teaching and writing — addresses matters of public concern and therefore deserves First Amendment protection from the State. Although it is unclear what legal force such paeans to academic freedom possess in the context of concrete cases, the Court has recognized that academic freedom is a “special concern of the First Amendment” as the Court later put it in Keyishian v. Board of Regents of the University of the State of New York (1967).

When the courts have considered the State as an employer, however, matters have been different. In Pickering v. Board of Education (1968), the Supreme Court imposed a balancing test (as in the Kansas rules above) to determine whether the First Amendment extends to public employees, including faculty. There are two parts of the test: first, whether the public employee is addressing an issue of public concern and, second, whether s/he is speaking as a private citizen. If the employee’s speech met these thresholds then the employee could raise First Amendment claims against an effort by a public employer to punish them for their speech. The Court acknowledged the interest of public employers to run an efficient workplace, but they also insisted being a public employee did not mean losing one’s First Amendment rights as a citizen.

In recent years, the courts have moved to curtail public employee rights and to strengthen the power of the state as employer — most importantly in Garcetti v. Ceballos (2006) and the cases that have followed in its wake. Garcetti concerned the actions of the Los Angeles District Attorney’s office in allegedly punishing one of its deputies for protesting the way that the office handled evidence in one case, communicating his disagreements with the defense, and then testifying to those doubts in a hearing. Crucially for our purposes, the Supreme Court ruled that although Richard Ceballos’s concerns that justice be done did implicate the sort of issue of public concern that might fall under First Amendment protection, he had done so as a responsibility of his job, and therefore was not acting as a private citizen. Since the District Attorney responded to actions Ceballos took as an employee rather than a private citizen, no First Amendment claim could be made.

Although not a case about academic freedom, Garcetti did provoke a debate within the Supreme Court about the decision’s implications for academic freedom. In a dissent, Justice David Souter raised two questions: first, did the Court’s decision that employees speaking in fulfillment of their duties lose First Amendment rights apply to academic freedom? And, second, what was to prevent employers from redefining job descriptions so broadly as to make almost any statement part of a job responsibility? The Court’s majority had no good answer to either but did indicate that the ruling might not apply to “speech related to scholarship or teaching,” and they expressed skepticism that employers would respond in the manner Souter suggested.

Given the increasingly statist and corporate inclinations of the federal courts, it is not surprising that they have followed Garcetti by moving to restrict and undermine the reach of academic freedom — especially when it concerns faculty participation in the affairs of the university. In a series of cases (most notably Hong v. Grant (2007) and Gorum v. Sessoms (2008)) district and appellate courts have ruled that when faculty serve on committees, engage in deliberations on department decisions, or debate policies or administrative hires they are simply fulfilling their job duties and have no First Amendment claims if they are disciplined for their speech. Although it is true that faculty participation in university governance has always had the least secure claim on First Amendment rights, the courts in recent years have stripped these claims back to the bone. Just as importantly, if anything done as part of an employee’s official duties could lose First Amendment rights then what happens to scholarship both in the classroom and through research and writing?

These court decisions, then, are a first context for understanding the significance of the Kansas regents’s policy. Unlike the Universities of California or Minnesota, the Kansas Board of Regents has embraced rather than resisted the tendencies of our increasingly conservative judiciary. Through their concern with the anarchistic nature of social media, they have claimed greater authority to surveil and discipline their faculty and staff. And through the vagueness of their language, they may have assumed the power to police scholarship and teaching whenever it is done electronically. Recent court decisions have provided them with authority to reduce faculty to simple employees if they wish.

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Changes in the law are only one, and perhaps not the most important, context for Kansas’s social media rules. Of arguably greater importance are the institutional changes within higher education. People differ on whether or not academic freedom resides in an individual or in the collective body of scholars (for instance in defining curriculum or scholarly acceptability), on whether academic freedom is rooted in professional standards of truth-seeking or extends to expressive speech. But whatever these differences, they all presume a community of scholars with the authority and independence to determine institutional goals without fear of discipline. It is this last situation that no longer exists.

Let me be clear: I am not suggesting that all faculty are powerless within their institutions or that they hold their employment at the whim of administrative superiors. But most faculty are in precisely that situation. As of 2011, approximately 75 percent of all teaching in higher education was done by those working off the tenure track (either as graduate students, lecturers, or adjuncts) many of whom were part-time. In 1975 by contrast, approximately 55 percent of teaching was done by those working off the tenure track. Put more strikingly, since 1975 the percentage of faculty on the tenure track has been effectively cut in half. The implications for academic freedom are clear and they are perilous — increasingly people do not have to be fired. They just can not be renewed.

Claims for academic freedom in the United States have always been predicated on the argument that faculty are not simply employees of their institutions. Instead faculty were, the AAUP insisted in 1915, “the appointees, but not in any proper sense the employees,” of the trustees and likened them to judges appointed by an executive. Faculty members from this perspective were officers of a college or university although not managers; their claims on university or college policy were as substantial as those of trustees or administrators. This assumes a particular theory of the University, one that may now seem quaint to many administrators and governing boards: that colleges and universities justified their special status by serving the public good and that that public good could only be served when faculty were, and were seen to be, free of either administrative or pecuniary influence or restriction. If either power or money could control faculty speech, the university ceased to be a university.

This peculiar notion was reaffirmed over the next several decades, particularly in the Joint Statement On Principles of Academic Freedom and Tenure issued by the AAUP and the Association of American Colleges in 1940. Although clarified over time, this statement has never been formally rejected. The crucial section is:

Tenure is a means to certain ends; specifically: (1) freedom of teaching and research and of extramural activities, and (2) a sufficient degree of economic security to make the profession attractive to men and women of ability. Freedom and economic security, hence, tenure, are indispensable to the success of an institution in fulfilling its obligations to its students and to society.

This is the heart of the matter. Universities and colleges are expected to fulfill public functions, they fulfill those functions through the creation of new knowledge, the preservation of old knowledge, and the dissemination of both through teaching, research, and writing. In order to do that, faculty must be free of the influence of money and power to pursue truth in accord with their disciplinary rules and intellectual conscience. In order to do that they must have the material independence created by tenure and the tenure system.

Although not explicitly repudiating the 1940 statement, university administrators, with the acquiescence of tenure-track faculty, have over the past several decades hollowed out that vision of the university as they have chipped away at the tenure system. For 75 percent of instructors in higher education, it is meaningless to claim that they possess academic freedom in its traditional understanding.

Although most powerfully expressed in the expansion of the contingent labor sector, the devolution of academic freedom is even more widespread. As state governments have withdrawn funding for higher education, administrators have hurried to emphasize legislature-friendly activities; and as states and the federal government have continued to underfund research enterprises, colleges and universities have embraced privatized solutions. Although the most obvious has been the rapid growth in tuition, there are dangers to academic freedom in the rush to cultivate private donors and research funding. As campuses turn toward private research funding, issues of proprietary claims to knowledge arise (as in the infamous British Petroleum contract at Berkeley), while growing emphasis on patent possibilities for scientific research threatens to direct research away from the search for knowledge and toward the search for commodities. Even the scramble for private donors to endow chairs threatens to drive the academic enterprise in directions driven not by the logic of inquiry but by the desires of the monied. The notion of an academy not controlled by the power of money (as expressed in 1915) seems a long-ago fantasy.

What the Kansas regents show is that this intrusion of private money is only part of a larger structural dilemma. Early claims for academic freedom acknowledged responsibilities that accompanied it — to the truth and to a public expectation of reasoned judgment. These were tied, in turn, to a sense of obligation to the university as a public trust. But today colleges and universities are concerned not only, or in some cases even, with their status as a public trust but also with their brand. Hence the drive to recruit excessive numbers of students to prove their desirability, the hesitancy to cut tuition lest they appear less elite, the search for star faculty, and the effort to expand into new areas despite the costs. When the Board of Regents grants the “CEO” of a campus the power to determine the undefined “best interests” of the college or university and to punish someone whose social media undermines that perception; when this policy is triggered not by some established pattern of social media use that has disrupted the teaching and research of the university but offended a lobbying group — then we have exited the classical world of academic freedom and entered one of the corporate protection of reputation in a market of positional good.

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There are, though, signs that the threat of power and money to academic freedom may have gone too far. The quick public response to the Kansas regents is one. The increasing organization of adjunct faculty is another. In a reversal of an earlier decision, a panel of the Ninth Circuit has just issued a strongly worded ruling that Garcetti doesn’t apply to academic speech. The faculty strike at the University of Illinois, Chicago, is yet another countersign. But until there is a concerted challenge to the decades-long hollowing out of the material bases of academic freedom, the university will be a shadow of its former self.